Friday, June 27, 2014

Is The New York Ban On Tiger Selfies Constitutional?

By Robert H.

No. New York’s ban on Tiger Selfies is almost certainly not constitutional.

What is a Tiger Selfie?

It is a picture of yourself posing next to a live, unrestrained (though probably stoned) tiger.  Men in New York use them to attract women because we are a squalid culture  that  hoards and sleeps and feeds and knows not God.

Why is it unconstitutional?

Because it is a content based ban on speech.  The government actually has a lot of freedom to restrict when and where and even how you say things.  “No protests in the park without a permit,” for example.  It has way, way less authority to ban speech based on the *content* of the speech. "No protests against gay rights in the park without a permit." 
In this case, pictures are a kind of speech, “men posing with tigers” is the content of that speech, and banning it puts the government in hot water.

So New York Can’t Do This?

Maybe they can!  If you narrowly tailor your content-based restriction to promote a compelling government interest, the Courts will uphold a content based ban on speech.

Wait, “We Don’t Want Tigers Tortured and Idiots Mauled Over Dating Profiles” Isn’t a Compelling Government Interest?

It Probs is!  But the law may not be sufficiently narrowly tailored.  Here's why:
The Supreme Court very recently struck down a law banning depictions of animal cruelty.  Essentially, the law didn't let you have a photo or video of an animal being hurt or killed if it would be illegal for you to hurt or kill the animal that way in the same jurisdiction the video existed in.  So, for example, a video of someone crushing a marmoset was illegal in a city where it was illegal to crush marmosets.  The Court’s reasoning in striking the law down was that it was overbroad -- it effectively constrained lots of legitimate activity.  So, for example, imagine you go Marmoset hunting in a state where that is legal, film it, and take the video to a city where it is *illegal* to hunt marmosets.  Even though the activity being filmed was totally legal when and where you did it, even though it isn't the more morally objectionable depictions of animal cruelty the law was targeting, you are now guilty under the statute.

This looks analogous to that.  If Siegfried wants to take a picture with his pet tiger in a state where it is legal to have pet tigers, that activity seems perfectly legitimate to me, even if he later takes the picture to New York.  And while it's true that there probably isn't a whole heck of a lot of legitimate "men by tiger" depictions out there, the ratio of "legitimate" to "bad" "men with tiger pictures" seems A. hard to prove, and B. likely to mean you are taking out roughly as much legitimate as illegitimate speech. 

So why might it still be constitutional?

Because the law is complicated and stuff.  More specifically, there may be relevant laws I have missed and courts may find the analogy to the animal cruelty case weaker than I do and I haven't even read the law so what do I know.  This isn't a brief to the Supreme Court, here I'm just winging it. 

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